Hough J.
This was an action for malicious prosecution, and is the same case reported in 59 Mo., 557, where the facts are fully stated, and it will be unnecessary to restate them in this opinion. It will be proper to observe, however, that in the trial which took place after the case was remanded by this court, the plaintiff recovered judgment for $1,500 on the first count, $3,000 on the second count and $3,000 on the third count; whereas, in the first trial, the plaintiff recovered judgment for $6,334.42 on the first count, and judgment was rendered for the defendants on the second and third counts. The first count was founded upon plaintiff’s discharge by the committing magistrate, and the second and third counts were founded upon proceedings had upon two indictments found in the criminal court.
1. malicious prosecution : probabiecause: malice It is essential to a recovery in an action for malicious prosecution, that the prosecution should be ended, and that it should have been instituted maliciously and without probable cause.
When this case was Rere before, this court said: “ If there be reasonable or probable cause, no malice, however distinctly proved, will make the defendant liable. The proof of malice "does not establish the want of probable cause, nor does the want of probable cause necessarily establish the existence of malice. That is to say, malice is not an inference of law from the want of probable cause.’. [670]*670Malice, however, need, not be proved by direct and positive testimony, but may be inferred from the facts which go to establish the want of probable cause; and this is all that is meant when it is said that malice may be inferred from the want of probable cause.” 59 Mo., loc. cit. 575-6.
In the case of VanSickle v. Brown, probable cause was defined as follows: “ In our opinion, that reasonable and probable cause which will relieve a prosecutor from liability is, a belief by him in the guilt of the accused, based upon circumstances sufficiently strong to induce such belief in the mind of a reasonable and cautious man.” 68 Mo., loc. cit. 635.
2. -: the Andment: refusal of magistrate to com* mft. It may be further observed that the action of a grand jury in finding a bill of indictment, or the commitment of the prisoner by the examining magistrate is prima facie evidence of probable cause. Sharpe v. Johnston, 59 Mo. 557; VanSickle v. Brown, 68 Mo. 627; State v. Railey, 35 Mo. 168; Brant v. Higgins, 10 Mo. 728; Graham v. Noble, 13 Serg. & R. 233; Bacon v. Towne, 4 Cush. 217. On the other hand, the refusal of the committing magistrate to bind the defendant over, has been said by this court to be very persuasive evidence that the prosecution was without probable cause. Sharpe v. Johnston, 59 Mo. 557; Casperson v. Sproule, 39 Mo. 39; Brant v. Higgins, 10 Mo. 728.
When an indictment has been found by the grand jury or the defendant has been committed by the examining magistrate, this prima facie evidence of probable cause may be rebutted or overthrown by evidence showing that such indictment, or commitment, was obtained by false or fraudulent testimony, or other improper means, or by evidence showing that the prosecutor, notwithstanding the action of the grand jury, or the committing magistrate, did not himself believe the defendant to be guilty. When the examining magistrate refuses to commit, and it is .thus determined that there is no probable cause for the prosecution, any inference of malice which may be [671]*671drawn from such fact, will be overcome by showing that the prosecutor, after having fully informed himself as to all ascertainable facts bearing upon the guilt or innocence' of the plaintiff, and having fully and fairly communicated the same to reputable counsel, instituted the prosecution under the opinion of such counsel that the plaintiff was legally subject to a criminal charge, and himself believed such advice to be correct and that the plaintiff was guilty. This is what is meant, by consulting counsel, and ihstitutwg a prosecution in good faith.
3. --=--; -: appear-fury -b5aisegtS&d mony Before proceeding to examine, in the light of these general principles the instructions given and refused by the trial court, the verdict m the case, as now / 7 Prese3Qted, renders it necessary for us to determine whether there could in any event be a recovery on each count of the petition, it being conceded that the two indictments were for the same offense charged before the committing magistrate.
In the ease of Bacon v. Towne, 4 Cush. 217, it appeared that the plaintiff was bound over by the committing magistrate, and was subsequently indicted by the grand jury, but in consequence of a‘defect in the indictment the public prosecutor entered a nolle prosequi thereon, and forthwith another indictment was laid before the grand jury and was found upon the evidence already given; upon which last indictment the plaintiff was tried and acquitted, and he thereupon instituted an action for malicious prosecution. Shaw, C. J., delivered the opinion of the court, holding that there was a single continuous prosecution, which was not ended until the plaintiff was acquitted on the second indictment.
The ease at bar is distinguishable from that case in this : In the case at bar, the first prosecution was ended when the plaintiff was discharged by the examining magistrate. "When the prisoner is discharged by the examining magistrate, the law does not require that the examination taken by him shall be certified and delivered to the [672]*672clerk of the court having cognizance of the offense charged^ to be laid before the grand jury. It is only when the prisoner is bound over that this is required to be done. Wag. Stat., chap. Ill, art. 2, §§ 25,27,33. So that if the prosecutor should, after the discharge of the prisoner, voluntarily ap pear, or cause himself to be summoned, before the grand jury and procure the prisoner to be indicted for the same offense charged before the magistrate, this would be the institution of a second and independent prosecution, for which he could be held liable if he acted maliciously and without probable cause. But if, in such ease, the prosecutor should not voluntarily appear, but should be summoned before the grand jury, without his own procurement, he would not be liable to an action, unless the testimony given by him, on which the plaintiff was indicted and arrested was false or fraudulent.
4. _-two in-they m a'y and constitute separate cause o f ac-non. And we are further of opinion, that when two indictments are found by the grand jury for the same offense, and the second indictment is preferred solely on account of some formal defect in the first* and the first is thereby suspended and is . p ,. quashed, no action for malicious prosecution can be based upon the order'of the court'discharging the prisoner from the first indictment. Even if the first indictment had been quashed before the second indictment was found, and the criminal court had committed or recognized the plaintiff to answer a new indictment, as it might have (§ 1986, Rev. Stat.), such second indictment could not be regarded as the institution of a new prosecution, but as a continuation of the proceedings under the first indictment. Under this view of the law, instruction numbered 14, asked by the defendant and refused by the court, should have been given.
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Hough J.
This was an action for malicious prosecution, and is the same case reported in 59 Mo., 557, where the facts are fully stated, and it will be unnecessary to restate them in this opinion. It will be proper to observe, however, that in the trial which took place after the case was remanded by this court, the plaintiff recovered judgment for $1,500 on the first count, $3,000 on the second count and $3,000 on the third count; whereas, in the first trial, the plaintiff recovered judgment for $6,334.42 on the first count, and judgment was rendered for the defendants on the second and third counts. The first count was founded upon plaintiff’s discharge by the committing magistrate, and the second and third counts were founded upon proceedings had upon two indictments found in the criminal court.
1. malicious prosecution : probabiecause: malice It is essential to a recovery in an action for malicious prosecution, that the prosecution should be ended, and that it should have been instituted maliciously and without probable cause.
When this case was Rere before, this court said: “ If there be reasonable or probable cause, no malice, however distinctly proved, will make the defendant liable. The proof of malice "does not establish the want of probable cause, nor does the want of probable cause necessarily establish the existence of malice. That is to say, malice is not an inference of law from the want of probable cause.’. [670]*670Malice, however, need, not be proved by direct and positive testimony, but may be inferred from the facts which go to establish the want of probable cause; and this is all that is meant when it is said that malice may be inferred from the want of probable cause.” 59 Mo., loc. cit. 575-6.
In the case of VanSickle v. Brown, probable cause was defined as follows: “ In our opinion, that reasonable and probable cause which will relieve a prosecutor from liability is, a belief by him in the guilt of the accused, based upon circumstances sufficiently strong to induce such belief in the mind of a reasonable and cautious man.” 68 Mo., loc. cit. 635.
2. -: the Andment: refusal of magistrate to com* mft. It may be further observed that the action of a grand jury in finding a bill of indictment, or the commitment of the prisoner by the examining magistrate is prima facie evidence of probable cause. Sharpe v. Johnston, 59 Mo. 557; VanSickle v. Brown, 68 Mo. 627; State v. Railey, 35 Mo. 168; Brant v. Higgins, 10 Mo. 728; Graham v. Noble, 13 Serg. & R. 233; Bacon v. Towne, 4 Cush. 217. On the other hand, the refusal of the committing magistrate to bind the defendant over, has been said by this court to be very persuasive evidence that the prosecution was without probable cause. Sharpe v. Johnston, 59 Mo. 557; Casperson v. Sproule, 39 Mo. 39; Brant v. Higgins, 10 Mo. 728.
When an indictment has been found by the grand jury or the defendant has been committed by the examining magistrate, this prima facie evidence of probable cause may be rebutted or overthrown by evidence showing that such indictment, or commitment, was obtained by false or fraudulent testimony, or other improper means, or by evidence showing that the prosecutor, notwithstanding the action of the grand jury, or the committing magistrate, did not himself believe the defendant to be guilty. When the examining magistrate refuses to commit, and it is .thus determined that there is no probable cause for the prosecution, any inference of malice which may be [671]*671drawn from such fact, will be overcome by showing that the prosecutor, after having fully informed himself as to all ascertainable facts bearing upon the guilt or innocence' of the plaintiff, and having fully and fairly communicated the same to reputable counsel, instituted the prosecution under the opinion of such counsel that the plaintiff was legally subject to a criminal charge, and himself believed such advice to be correct and that the plaintiff was guilty. This is what is meant, by consulting counsel, and ihstitutwg a prosecution in good faith.
3. --=--; -: appear-fury -b5aisegtS&d mony Before proceeding to examine, in the light of these general principles the instructions given and refused by the trial court, the verdict m the case, as now / 7 Prese3Qted, renders it necessary for us to determine whether there could in any event be a recovery on each count of the petition, it being conceded that the two indictments were for the same offense charged before the committing magistrate.
In the ease of Bacon v. Towne, 4 Cush. 217, it appeared that the plaintiff was bound over by the committing magistrate, and was subsequently indicted by the grand jury, but in consequence of a‘defect in the indictment the public prosecutor entered a nolle prosequi thereon, and forthwith another indictment was laid before the grand jury and was found upon the evidence already given; upon which last indictment the plaintiff was tried and acquitted, and he thereupon instituted an action for malicious prosecution. Shaw, C. J., delivered the opinion of the court, holding that there was a single continuous prosecution, which was not ended until the plaintiff was acquitted on the second indictment.
The ease at bar is distinguishable from that case in this : In the case at bar, the first prosecution was ended when the plaintiff was discharged by the examining magistrate. "When the prisoner is discharged by the examining magistrate, the law does not require that the examination taken by him shall be certified and delivered to the [672]*672clerk of the court having cognizance of the offense charged^ to be laid before the grand jury. It is only when the prisoner is bound over that this is required to be done. Wag. Stat., chap. Ill, art. 2, §§ 25,27,33. So that if the prosecutor should, after the discharge of the prisoner, voluntarily ap pear, or cause himself to be summoned, before the grand jury and procure the prisoner to be indicted for the same offense charged before the magistrate, this would be the institution of a second and independent prosecution, for which he could be held liable if he acted maliciously and without probable cause. But if, in such ease, the prosecutor should not voluntarily appear, but should be summoned before the grand jury, without his own procurement, he would not be liable to an action, unless the testimony given by him, on which the plaintiff was indicted and arrested was false or fraudulent.
4. _-two in-they m a'y and constitute separate cause o f ac-non. And we are further of opinion, that when two indictments are found by the grand jury for the same offense, and the second indictment is preferred solely on account of some formal defect in the first* and the first is thereby suspended and is . p ,. quashed, no action for malicious prosecution can be based upon the order'of the court'discharging the prisoner from the first indictment. Even if the first indictment had been quashed before the second indictment was found, and the criminal court had committed or recognized the plaintiff to answer a new indictment, as it might have (§ 1986, Rev. Stat.), such second indictment could not be regarded as the institution of a new prosecution, but as a continuation of the proceedings under the first indictment. Under this view of the law, instruction numbered 14, asked by the defendant and refused by the court, should have been given.
For reasons heretofore given, instructions 13, 15, 16 and 17 asked by defendants were properly refused inasmuch as they directed a finding for the defendants on all the counts, if the offense charged in the indictments was [673]*673the same offense charged before the committing magistrate.
The third instruction asked by the defendants, was as follows:
5. -: facts con-a question of law- “ 3. If the jury believe there was reasonable cause for the prosecution, no malice, however distinctly proved, will make defendants liable in this action, and the proof of want of probable cause does not necessarily establish the existence of malice; that is to say, malice is not an inference of law from the want of probable cause, and the jury cannot infer malice unless the facts attending the conduct and determination of the prosecution, and those adduced to establish the want of probable cause, are of a character to warrant such inferenceThis instruction is in the language of the opinion delivered by this court, when the case was first here. It was given by the court •with the exception of that portion in italics, and that was properly omitted, as the context of the opinion from which it was taken shows that it was intended by this court as a direction to trial courts in giving instructions in regard to the inference of malice from the want of probable cause. It should not be embodied in an instruction for the reason that it involves a question of law. Whether the facts are such as to warrant an inference of malice, is a question of law for the court.
We see no material error in the instructions given by the court, so far as the first count is concerned.
Under the view we take of the case, additional instructions should have been asked applicable to the count and upon the prosecutions under the indictment.
6. -: advice oí counsel: good faith. Instruction numbered eight given for the plaintiff, has been sharply criticised by defendants’ counsel, and has been declared to be erroneous by the court 7 . of appeals. W e nave the same opinion, however, in regard to this instruction, now, which we had when this case was first here, and treating it as applicable alone to the first count, as it was treated on the record then before us, we think it correct. This instruction is, in effect* [674]*674the converse of instruction five, given for the defendants, and we may remark here, that instruction five is inaccurate, in using in the last line the words, “ then there was probable cause,” in lieu of the words, “then such prosecution was not malicious.” The advice of counsel cannot accurately be said to amount to probable cause, in the face of the judgment of the magistrate discharging the prisoner. The discharge of the plaintiff by the committing magistrate was f rima fade evidence of a want of probable cause, although counsel may have advised that plaintiff was liable to a criminal charge; and although defendant may have communicated to counsel learned in the law, all the facts and circumstances bearing upon the guilt or innocence of the plaintiff', which they knew, or by reasonable diligence could have ascertained, yet if, notwithstanding the advice of counsel, they believed that the prosecution must fail and they were actuated in commencing said prosecution not simply by angry passions or hostile feelings, but by a desire to injure and wrong the plaintiff, then most certainly they could not be said to have consulted counsel in good faith, ■ and the jury would have been warranted in finding that the prosecution was malicious. This is what we think the eighth instruction means.
When the case is re-tried, the instruction given for plaintiff defining probable cause, might be made more explicit by adopting the definition given by this court, and the language employed, in the fifth instruction given for th e plaintiff, to express malice on the part of defendant, might also be made a little more perspicuous.
The judgment of the court of appeals reversing the ■udgment of the circuit court and remanding the cause, will be affirmed.
All concur, except Judge Ray, absent.